Child Support Registrar and Kilbey

[2018] FCCA 1855

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & KILBEY [2018] FCCA 1855

Catchwords:
CHILD SUPPORT – Second set of enforcement proceedings – no merit in the response.

Legislation:

Child Support (Registration and Collection) Act 1988, ss.71A, 72I, 113, 116(2), 120

Federal Circuit Court Rules 2001 rr 13.07, 25B(13)

Family Law Act 1975 s.60CA

Applicant: CHILD SUPPORT REGISTRAR

Respondent: MR KILBEY

File Number: MLC 11134 of 2017

Judgment of: Judge Harland

Hearing date: 12 April 2018

Date of Last Submission: 12 April 2018

Delivered at: Melbourne

Delivered on: 10 July 2018

REPRESENTATION

Solicitors for the Applicant: Mr Gauci of Hunt & Hunt Lawyers

The Respondent: In person

ORDERS

The Court declares that:

As at 11 April 2018 the Respondent owes the Applicant the sum of $31,831.90 (“Child Support Debt”) consisting of $29,971.00 in arrears of child support and $1,860.90 in late payment penalties.

The Court orders that:

1. The Respondent pay to the Applicant the Child Support Debt in the sum of $31,831.90.

2. The Respondent pay to the Applicant the sum of $3,422.08 towards its legal costs fixed in accordance with Schedule 1 to the Federal Circuit Court Rules 2001.

3. The Respondent pay to the Applicant the amounts payable under orders 1 and 2 above (“Total Debt”) within 30 days of date of these orders.

4. Until further order of the Court or payment in full of the Total Debt:

   (a)The Respondent is hereby restrained from assigning, transferring, further encumbering or dealing with any way their interest in the following real properties without the prior written consent of the Applicant:

   (i)the property at Property A, Tasmania, more particularly described in the certificate of title Volume;

   (ii)the property at Property B, Tasmania, more particularly described in certificate of title Volume;

   (iii)the property at Property C, Tasmania, more particularly described in certificate of title Volume; and

   (iv)the property at Property D, Tasmania, more particularly described in certificate of title Volume,

   (“Real Property”)

   (b)the respondent’s interest in the Real Property be charged in favour of the Applicant for the Total Debt (and the Applicant be at liberty to lodge a caveat over the Real Property to secure the interest created by this charge).

5. If the Respondent defaults in making any of the payments ordered to be paid under these orders, or deals with any of the Real Property in breach of these orders, the amount of the Total Debt then outstanding shall be immediately due and payable.

6. The parties have liberty to restore the matter to the Court list upon 7 days’ notice in respect of compliance with these orders.

AND THE COURT NOTES THAT:

A.Any monies payable by the Respondent pursuant to these orders are in addition to their ongoing liability to pay child support as assessed or varied from time to time.

B.If the Respondent defaults in making any of the payments ordered to be paid under these orders or deals with any of the Real Property in breach of these orders, the Applicant may proceed to enforce the Total Debt then owing in accordance with Part 25B of the Rules (including Subdivision 25B.2.3 – Enforcement warrants and/or Subdivision 25B.2.4 – Third party debt notice).

IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Kilbey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11134 of 2017

CHILD SUPPORT REGISTRAR

Applicant

And

MR KILBEY

Respondent

REASONS FOR JUDGMENT

1. The Child Support Registrar (“the CSR”) brings this application to enforce a child support debt owed by the respondent, Mr Kilbey (“Mr Kilbey”). The CSR relies on the following documents:

   a)Application in a case filed 27 October 2017; and

   b)Affidavit sworn by Mr D sworn on 24 October 2017.

2. The CSR has provided a certificate pursuant to s.116(2) of the Child Support (Registration and Collection) Act 1988 that certifies that as at 11 April 2018 the amount of $31,831.90 is due and payable by Mr Kilbey and remains unpaid. This amount consists of child support debt in the sum of $29,971.00 and penalties in the sum of $1,860.90. The effect of s.116 is that the certificate is prima facie evidence that the particulars on the certificate are correct.

3. The child support liabilities Mr Kilbey has incurred relate to two separate child support cases. The payees are Ms S and Ms N. They are not parties to these proceedings as the debt is to the Commonwealth which the CSR is entitled to sue for pursuant to s.113 Child Support (Registration and Collection) Act 1988.

4. This is also not the first time the CSR has had to bring enforcement proceedings against the Mr Kilbey. Given these factors, Mr Kilbey’s approach and response to these proceedings is all the more surprising.

5. In the previous child support enforcement proceedings the following orders were made on 30 October 2015 by His Honour Judge Riethmuller:

   1.The Respondent pay to the Applicant the child support debt.

   2.The Respondent pay to the Applicant a contribution to its costs to be fixed at $3,367.50 in accordance with Schedule 1 to the Federal Circuit Court Rules 2001.

   3.The Respondent pay to the Applicant the amounts payable under Orders 1 and 2 above (total debt) within 7 days of these Orders subject to Order 4.

   4.The Respondent file an application to depart from the assessment within 28 days. If the Respondent files an application to depart from the assessment within 28 days, the total debt as determined will be payable within 30 days of the appeal decision.

   5.Should the Respondent file any appeal within 28 days of the relevant decision, payment of the total debt as determined will be payable within 30 days of the appeal decision.

   Security

   6.Until payment in full as declared by the Court or payment in full of the total debt:

   6.1.The Respondent is hereby restrained for 7 days from assigning, transferring, further encumbering or dealing in any way with his interest in the real property at:

   6.1.1Property C, in the State of Tasmania more particularly described in Certificate of Title Volume;

   (the real property) without the prior written consent of the Applicant.

   6.2The Respondent's interest in the real property be charged in favour of the Applicant for the total debt (and the Applicant be at liberty to lodge a caveat over the title to the real property).

   Effect of default

   7.If the Respondent defaults in making any of the payments ordered to be paid under these orders or deals with the real property in breach of these orders, the amount of the total debt then outstanding shall be immediately due and payable.

   AND THE COURT NOTES THAT:

   A.Any monies payable by the Respondent pursuant to these orders are in addition to his     ongoing liability to pay child support as assessed or varied from time to time.

   B.If the Respondent defaults in making any of the payments ordered to be paid under these   orders or deals with the real property in breach of these orders, the Applicant may proceed   to enforce the total debt then owing in accordance with Part 25B of the Rules (including     Subdivision 25B.2.3 – Enforcement warrants, and/or Subdivision 25B.2.4 – Third Party Debt Notice).

6. The CSR commenced the current enforcement proceedings on 27 October 2017. Mr Kilbey was personally served with the application in a case and supporting affidavit on 13 November 2017.

7. The CSR filed written submissions on 6 March 2018 which accurately outline the applicable law and summarised Mr Kilbey’s financial position, which establishes that the enforcement order can be satisfied from the sale of the properties if he does not pay the required sum.

8. The first return date was on 7 March 2018 before Her Honour Judge Williams. Despite having more than three months to prepare his response and supporting affidavit, Mr Kilbey attended court on that day not having filed any documents and seeking an adjournment.

9. Mr Gauci for the CSR opposed the adjournment, making the point that it was the second set of enforcement proceedings and that Mr Kilbey had had months to file material. Mr Gauci sought that final orders be made with the debt to be paid within 30 days, which would enable Mr Kilbey to file a departure application if he wanted to do so without further costs being incurred in the proceedings.

10. It is telling that Mr Kilbey made little effort to make payments to reduce the debt after the first proceedings and whilst the current proceedings have been on foot.  Her Honour Judge Williams observed that the Child Support Payer Transaction Statement tendered to the Court shows that after His Honour Judge Riethmuller made orders on 30 October 2015 Mr Kilbey paid $8,761.95.[1]

    [1] This largely cleared the debt apart from the legal costs ordered by His Honour Judge Riethmuller. Penalties for overdue child support amounts were first charged after those orders on 23 January 2016 and appear consistently after that. Whilst Mr Kilbey made some progress, the debt steadily increased.

11. He was also put on notice that it was not clear what defence he could raise. The total debt was significantly more than the $5,000 Her Honour Judge Williams ordered that he pay on an interim basis.

12. Mr Kilbey opposes the application. He relies on the following documents:

    a)Response filed 10 April 2018; and

    b)His affidavit sworn on 9 April 2018.

13. He did not file these documents until shortly before the hearing. I had to stand the matter down to enable Mr Gauci to consider those documents. Mr Kilbey was not able to proffer a reasonable excuse for his tardiness merely saying he was (employment omitted), therefore suggesting he was too busy to prepare his own documents, and saying that the applicant knew what his response was going to be.

Orders sought by Mr Kilbey

1. In his response he seeks the following orders:

   1.That any all orders made in these proceedings to date are hereby revoked;

   2.That alternatively, all orders made in these proceedings to date are hereby stayed indefinitely;

   3.That if the Respondent is ordered the pay to the Applicant the alleged debt that such debt be paid to the Applicant at the rate of $200 per week;

   4.That the current restraint administratively imposed by the Applicant upon the Respondent forbidding the Respondent from leaving Australia is hereby revoked;

   5.That this Application be heard and determined together with an application for Parenting  Orders for [X], [Y] and [Z];

   6.That each party pay their own costs of and incidental to these proceedings.

   7.Such other orders and/or further orders incidental to these proceedings.

2. His response is misconceived. This is concerning given the fact that Mr Kilbey is a (occupation omitted) and this is the second round of enforcement proceedings in which he has been involved.

Revocation or stay of orders

1. There is no basis for seeking that all previous orders in this proceeding be revoked or stayed. In effect, Mr Kilbey is asking that I sit as an appeal court. The injunctions made on the previous occasion were properly made pursuant to rule 25B(13) of the Federal Circuit Court Rules. These types of orders are commonly made in enforcement proceedings, which are only brought when a respondent is not meeting their legal obligations.

Departure prohibition order

1. The issue with respect to the departure prohibition order (“DPO”) is not before the Court. Mr Kilbey submitted that the Court has power to revoke this. He said:

   “… I say you do have power because I believe that the DPO was issued administratively against me is I believe, issued under that Act and I think you have plenty of jurisdiction to deal with this Act and you have plenty of jurisdiction to deal with whether the order remains in place.”

2. Section 72I of the Child Support (Registration and Collection) Act addresses departure prohibition orders. The section is self-explanatory with respect to the circumstances where the registrar will issue such an order and how a person can apply to have the DPO can be revoked. Mr Kilbey can only seek redress in this Court by seeking a review of the CSR’s decision not to revoke the DPO. Mr Kilbey does not refer to the DPO in his affidavit at all. This was simply an opportunistic attempt to have the Court discharge this order with no evidence and without jurisdiction.

3. He complained that he had had it revoked previously but that it had been reimposed. This is inaccurate. Given Mr Kilbey’s poor history of child support payments, 72I(2) may apply. That is an issue for the CSR if Mr Kilbey chooses to see to the lifting of the DPO in the usual course.

Parenting orders

1. In addition to order 1 to 7 sought in his response set out above, Mr Kilbey sets out vague parenting orders in a separate part of his response which I will not set out. As I observed above, the two mothers are not parties to the proceedings.

2. In his affidavit he claims that the mother of his two younger children is an alcoholic and drug addict. He refers to other things that he claims occurred during the relationship and then goes on to criticise the state of her home in 2014. I note that this all occurred before the previous enforcement orders and bear no relevance to child support enforcement proceedings. He goes on to make numerous other complaints about her including about her mental health.

3. The affidavit is full of self-serving comments with respect to irrelevant issues. An example is at [44] where he says:

   “The Court may wonder why I have not done anything about seeking a Parenting Order in relation to my younger children but to be quite frank I have been too affected by the situation to do anything about it and speak about against Ms N the mother of my children is difficult for me.”

4. He goes on to talk about the fact that he has (employment omitted).

5. He then goes on to complain about the mother of his older children and talks about difficulties he has in seeing his children. He annexes various reports for his son [X] and refers to his developmental delay.

6. There is no relationship between child support enforcement proceedings with the CSR and parenting proceedings with either one or both of the mothers of his children. Parenting proceedings would need to be started with an initiating application, notice of risk and affidavit. Much of Mr Kilbey’s affidavit and all of his annexures address these irrelevant parenting orders.

Mr Kilbey’s financial circumstances

1. Mr Kilbey briefly refers to his financial circumstances at [85] to [87] of his affidavit. He says he has additional liabilities to those set out in the applicant’s affidavit. He does not annex any financial documents. In contrast, the financial information included in the applicant’s affidavit is information the applicant obtained pursuant to notices issued under s.120 of the Child Support (Registration and Collection) Act to various financial institutions and government departments including the Australian Taxation Office.

2. When appearing before Her Honour Judge Williams, Mr Gauci outlined the equity Mr Kilbey has in four pieces of real property in support of the injunctions he sought to preserve those properties pending the debt being discharged.

3. Mr Kilbey unsuccessfully sought that the order only be made with respect to one of his properties, claiming that if the injunctions Mr Gauci sought were placed over all four of the properties he would have difficulty operating his business because his loans are cross-collaterised and he would be in breach of his ‘lending covenants’. He did not provide any evidence in support of that claim. Her Honour Judge Williams required him to show Mr Gauci his bank transactions. She then granted the adjournment and order that Mr Kilbey make a partial payment of $5000 (being satisfied that Mr Kilbey owed much more than that) by the adjourned date and made the asset preservation orders Mr Gauci sought.

Mr Kilbey’s application to have the Child Support paid in a certain way

1. Mr Kilbey has had ample opportunity to present his case. He failed to address the substantive issues and he sought orders which he knew he had no proper basis to seek. His submissions in this respect are quite extraordinary. I set out the following exchange taken from the transcript.

   MR KILBEY:   Well, your Honour, I can start in relation to costs.  Most of the material provided in the affidavit has been provided to the applicant and there has been quite significant discussions about the position of Ms N.  I was told that the Commonwealth has no power as to how monies can be distributed when it’s provided to the applicant and it would be a matter for court.  So we’re here today because it was adjourned from another day, but I want to seek directions or at least put it to the court, because this is my change [sic] to do that, that any monies provided to the applicant they’re distributed in such a way that Ms N can’t hasten her demise in relation to illicit drug use and alcohol abuse.

   HER HONOUR:   What power have I got to do that?

   MR KILBEY:   Well, your Honour, it’s a debt to the Commonwealth.  I understand that, but I believe you have – you may have the power to make directions about how it can be provided or used.

   HER HONOUR:   Under – under what section of what Act do you say I’ve got power to do that?

   MR KILBEY:   Well, the only Acts we have are the Registration and Collection and the Federal Circuit Court Act and the inherent jurisdiction of the court and things of that nature

   HER HONOUR:   I don’t think this falls within – within that.  You’re going to have to point me to something, Mr Kilbey.

   MR KILBEY:   Well, that’s what I was told by my case officer, that they had no power – they had no power as to how they can distribute these monies and that the only way to deal with it would be to end up in a court.  So in relation to costs I say that we’re here because the applicant knew about the situation and made an application in any

2. Mr Kilbey started to make submissions about the best interests of the children being paramount[2], referring to the Family Law Act which has no application in child support proceedings.

   [2] Section 60CA of the Family Law Act 1975 (Cth)

3. He went on to submit the following:

   MR KILBEY:   ‑ ‑ parts of it [his response] that relate to the parenting order I don’t pursue, but parts of it that relate to child support I do pursue and in relation to the bits that deal with child support it’s, in my submission, it’s apparent that there’s some difficulties with the mother of the younger two and, in my submission, that the monies that will be provided to her will hasten her demise.  I mean, we – we – this is the only forum, this is the only way we can, you know, have an impact on, I suppose how monies might be distributed to the payee.  I’m told by the applicant they can do nothing.

   HER HONOUR:   You would have to point to me to some source of power in the child support legislation that would enable me to order a child support registrar to distribute the funds in a certain way.

   MR KILBEY:   I – I – I would stand it down, your Honour, if I could to look at that.  I’m sure there’s – there – there is – there is ‑ ‑ ‑

   HER HONOUR:   I’m happy to stand it down so you can have a look because, as I said, you have to point me to something.

   MR KILBEY:   Well, that – well, I – I will try and do that if I can stand it down, your Honour, but in relation to costs that would be my main submission, that the applicant has known all along about these particular points of issue ‑ ‑ ‑

   HER HONOUR:   Yes.

   MR KILBEY:   ‑ ‑ ‑ and regardless of that fact they’ve applied anywhere to the court and there has been no possibility to negotiate with the applicant about how amounts might be distributed to at least one of the payees and so, therefore, it must be that we have to be in a court.  That’s according to what I’m told by the applicant, my case worker.  So if I could stand it down I will try and find what I think I could possibly rely upon in the Act

1. Mr Kilbey made the most extraordinary submissions with respect to the order for the interim payment and what occurred when the matter was last before the court before Judge Williams. Again I extract the following part of the transcript of 12 April 2018:

   MR KILBEY:   Well, I – I will do that, your Honour.  So that’s in relation to that.  So the matter was adjourned to today in order for me to file papers.  The – the $5000 that was ordered to be paid on a – on an interim basis, it was admitted by Mr Gauci last time that Mr Kilbey can make an – well, put his response in, which I’ve done.  That’s why that’s not been paid because I’ve put in my response as to what I was seeking, which is that the orders be revoked and stayed – and/or stayed.

   HER HONOUR:   Are you really asking me – aren’t you really asking me, in terms of revoking an order, isn’t that really what you would do if you appealed?  I mean, are you – you’re really asking me to act as an appeal court of Williams J, aren’t you?

   MR KILBEY:   Well, I – well, that’s not how I understood it when he made that submission.  He made the submission to the court so I – I –I took him on his word what he said to the court and I’ve put in my papers, so I thought there were ‑ ‑ ‑

   …

   MR GAUCI:   The – the conversation last – on the last occasion was in relation to any departure application or any application in relation to what Mr Kilbey said the power was, or the basis of the power of him asking for the Child Support Registrar to be directed to distribute the funds in a certain way.  It was never in relation to revoking interim orders or payment.

   HER HONOUR:   Okay.  So you say that he has – Mr Kilbey has been on notice that – on the issue of the source of the power?

   …

   MR GAUCI:   Mr Kilbey was on notice of the issues, but it was only when the Child Support Registrar commenced proceedings that these issues have now come to the forefront.  There was no application brought by Mr Kilbey to have the registrar directed under ‑ ‑ ‑

   HER HONOUR:   Yes.

   MR GAUCI:   ‑ ‑ ‑ whatever power it is ‑ ‑ ‑

   HER HONOUR:   Yes.

   MR GAUCI:   ‑ ‑ ‑ to distribute the funds.

   MR KILBEY:   Well – well, it – it – as to who the applicant would be, your Honour, it was irrelevant.  One – one person was going to make an application so whether I commence or they commence, I don’t think it’s relevant.

2. Mr Kilbey then went on to make erroneous submissions about what he claimed was discussed on the last occasion. Mr Kilbey claimed that on the last occasion Mr Gauci said that he could apply to revoke the injunctions. He insisted it was on the court record. He did not resile from this as his submission even after I indicated I would order the transcript from the last court date.

3. I stood down the matter to give Mr Kilbey the opportunity to find the section of the Child Support Collection and Registration Act which he claimed gives the Court the power to order the CSR to apply child support payments in a certain manner.

4. Furthermore I observe that it is common to make these type of injunctions, pending the overdue debt being discharged. It is trite to say that enforcement proceedings are only brought when a legal obligation is alleged to be outstanding. Having read the transcript of the proceeding before Her Honour Judge Williams, I am also satisfied that the adjournment was conditional upon Mr Kilbey paying the $5,000 and the asset preservation orders being made.

5. Unsurprisingly the only section Mr Kilbey was able to point to was s.71A which refers to non-agency payments. That has no application here as it is referring to non-agency payments which the payee and payer seek to be credited against a child support liability. I further note that Mr Kilbey did not attempt to formulate such an order.

6. Mr Kilbey resorted to saying that he did not know if the Court has any jurisdiction to direct the debt to be paid in a certain manner. His aim being to prevent the mother from being able to use child support money to buy alcohol and drugs. It is common for self-represented litigants without legal training to be unaware of the sources of power the Court has to make orders and jurisdiction issues.

7. The transcript accurately reflects what Mr Gauci indicated it would, which was references to the equity available with respect to the various properties owned by Mr Kilbey showing that he had more than enough equity to pay the whole child support debt and to provide security for the debt pending payment. The issue that was raised before Her Honour Judge Williams was not with respect to Mr Kilbey being given the opportunity to seek the revocation for the injunctions and interim payments, rather it was with respect to Mr Kilbey to make an application to review his liability or make an application on the basis of some power for the court to direct the CSR to disburse the child support payments in a specific manner.

8. Mr Gauci sought final orders relying on rule 13.07 of the Federal Circuit Court Rules 2001, which sets out the circumstances where the Court may make a summary judgment which include the Court being satisfied that the opposing party does not have a reasonable prospect of successfully defending the claim.

9. Despite the number of ambit claims Mr Kilbey made, he did not challenge the amount of the judgment debt. I accept the applicant’s submissions that Mr Kilbey has the financial means to pay the debt as a lump sum. If he fails to pay the child support debt, there is sufficient equity in one or more of his properties.

10. I would be more concerned that allowing Mr Kilbey to pay the debt by instalments will lead to further enforcement proceedings with respect to a default of those orders. It is hoped that the CSR will not need to commence a third set of child support enforcement proceedings against Mr Kilbey.

Conclusion

1. Mr Kilbey’s conduct and submissions before the Court on 7 March 2018 and 12 April 2018 are troubling, noting the following:

   a)These are the second set of enforcement proceedings the CSR has had to take against Mr Kilbey;

   b)Mr Kilbey failed to pay a costs order from the previous proceedings;

   c)Mr Kilbey was explicitly put on notice of his ability to make an application for a departure from the previous assessment by way of order 4 of the orders made by Judge Riethmuller in the previous enforcement proceedings referred to above.

   d)Although he appears in these proceedings as a litigant in person, he remains an (occupation omitted). Not only has he failed to meet a costs order from previous proceedings, he failed to comply with the interim orders made by Judge Williams, including that he pay an interim sum of $5,000 as well as the injunctions being made.

2. Mr Gauci made the point that the current debt has arisen since the previous enforcement proceedings. The CSR issued a letter of demand on 1 September 2017. Mr Kilbey has been aware of the debt and could have avoided these proceedings. It is appropriate that Mr Kilbey pay costs which otherwise are effectively funded by taxpayers. The costs the applicant seeks are in accordance with the Federal Circuit Court’s scale and not an indemnity basis. The costs sought are only for these proceedings and do not include the outstanding costs from the previous proceedings.

3. Mr Kilbey’s submissions have been entirely without merit. He has failed to provide evidence and legal argument to support his submissions.  In doing so he has wasted court time and added to the costs he has to pay by there being a second court appearance.

4. I am satisfied that Mr Kilbey has the financial means to pay the outstanding child support and costs in a lump sum. I have no confidence that if he is given the opportunity to pay his debt by instalments that he will do so. He does not have a good track record.

5. I am satisfied that the respondent does not have any reasonable defence to these proceedings. Therefore it is appropriate to make the final orders sought by the applicant.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 10 July 2018